Abbott v. State

• Decision Date: 22 December 1913
• Citation: 63 So. 667,106 Miss. 340
• Court: Mississippi Supreme Court
• Parties: T. W. ABBOTT v. STATE

63 So. 667

106 Miss. 340

T. W. ABBOTT v. STATE

Supreme Court of Mississippi

December 22, 1913

October 1913

APPEAL from the circuit court of Jefferson county, HON. E. E. BROWN Judge.

T. W Abbott was convicted of violating the rules of the live stock sanitary board and appeals.

The facts are fully stated in the opinion of the court.

Reversed and dismissed.

L. L Posey, for appellant.

The court should have sustained the demurrer to the affidavit because it charges no crime against the law; disobedience to the rules and regulations of the Mississippi Live Stock Board is the only charge, and these rules never having been incorporated into the laws and made a part thereof are not the law, and it follows that a conviction cannot be sustained as no law has been violated.

The evidence of the state fails to show that Jefferson county was ever quarantined by the Mississippi Live Stock Board or the state live stock sanitary board, chapter 106 (H. B. No. 218), and section 3 of said chapter provides: "That said board shall have plenary power to deal with all contagious and infectious diseases of animals as in the opinion of the board may be prevented, controlled or eradicated, and with full power to make, promulgate and enforce such rules and regulations as in the judgment of the board may be necessary to control, eradicate and prevent the introduction and spread of the Texas or fever-carrying tick, Boophilus annulatus, and all other diseases of animals in the state."

This conferred no authority upon the board of supervisors to quarantine any county or any part thereof. Therefore the attempted quarantine put in force under the regulations of an order of the board of supervisors is ineffective, the board having no authority to quarantine under the section just cited, and for this reason the charge in the affidavit that the rules and regulations of the state live stock sanitary board have been violated is fatally defective and the demurrer to the affidavit should have been sustained. For the above reasons this instruction asked for by the defendant and refused by the court should have been given: "The court instructs the jury for the defendant that the state is not asking a conviction upon a statute in this case, but upon a regulation of the board of the state live stock association, and that every man charged of crime must be proven guilty of a violation of the law before a conviction can be had."

The court, over the objection of the defendant, permitted the witness, Dr. Horstman, to read the laws, rules and regulations, etc., governing the control, etc., issued under the authority conferred by the Acts of the legislature of 1908 and 1910 upon the Mississippi Live Stock Sanitary Board. A witness for the state, one possibly of strong prejudice, should not be permitted to read the laws to the jury. This is conferring upon the witness the authority which rightfully belongs to the bench, it being the duty of the court and the court alone, to instruct the jury as to what the law is in any and all matters. The court afterwards tried to cure the reading of the laws and regulations of the board to the jury by eliminating section 3, above referred to, but at this point admitted the regulations which constitute the document under which the conviction was asked, hence the effect on the jury was the same, and the violation of the defendant's right was just as great.

The proceeding of this case shows nothing but the conviction of a man under the rules of the Mississippi Live Stock Sanitary Board without said board having anything whatever to do with the quarantining of Jefferson county, either directly or indirectly, no authority ever having been given the board of supervisors to take the initiative in the matter as shown by the records of this case. The Mississippi Live Stock Sanitary Board is domiciled at Jackson, Mississippi, where it transacts all its affairs, passes all orders and regulations. No order or regulation by said board has been shown in this case which quarantined Jefferson county, and hence no regulation of same has been violated. This being true, I think this case should be reversed.

Geo. H. Ethridge, assistant attorney-general, for the state.

This prosecution is founded upon chapter 106 of the Laws of 1908, empowering the state live stock sanitary board to deal with infectious diseases of animals, and provide quarantine and to promulgate and enforce such rules and regulations as may be necessary to control, eradicate and prevent the introduction and spread of the Texas or tick fever and fever carrying tick and all other diseases of animals.

Section 3, of the act, confers plenary power on the state live stock sanitary board to make all rules and regulations proper and necessary and by section 6 they have full authority to establish and maintain the quarantine lines and to appoint inspectors and to delegate authority to inspectors to enter premises and inspect and disinfect live stock and premises, and enforce quarantine including counties, farms, pens and stables. Sections 4 and 5 impose penalties for violation of the provision of the acts, or interfering with any duly appointed officer of the board, and for driving, conveying, or transporting from any other state or territory into this state or moving within this state, animals known to be infected with the infection of the contagious or communicable disease contrary to the rules and regulations of the board.

Inasmuch as the powers of the state live stock sanitary board to formulate rules and regulations having the force of law and their power to enforce them in the courts is a question that has attracted so much public interest and is so important to have it determined by this court at the earliest possible time. I shall ask the court to go into the subject and consider it from every standpoint so that any defects that may be in the law may be dealt with by the legislature at the coming session.

The appellant's brief does not deal with the constitutional feature of the law but there are various suits either now pending in this court, or on the way to this court in which the constitutional feature will be involved, so that I shall discuss in this brief that feature as well as the technical questions arising in this case.

This is a question that affects a very large per cent of the people of the state, and under this enactment and under the rules and regulations of the live stock board, co-operating with the several counties and the United States Government, large sums of money have been expended and plans have been formulated and work undertaken in a great portion of the state. It, therefore, becomes highly important that the court, at the very outset, go fully into the question and decide every phase of the law and determine the precise scope of the live stock board's work and its powers under the act in question, so that the public interest may be taken care of should any additional legislation be needed.

I shall first discuss the questions raised by the appellant in his brief, and then discuss other phases that appear in the law, especially bearing on the power of the legislature to delegate to the state live stock sanitary board powers to make effective the legislative purpose of preventing the spread of Texas fever, and destroying and removing the cause of this disease.

The demurrer filed to the affidavit is sufficient on its face to bring in question the validity of the entire law, and would warrant the court in dealing with the whole scope and power of the act as requested in this brief. The appellant makes the point that the affidavit charges no crime against the law; that the only charge is the disobedience to the rules and regulations of the Mississippi Live Stock Board and that these rules having never been incorporated in the laws are not the law and that a conviction cannot be sustained because no law has been violated. He takes the position that the statute does not confer power to quarantine, and that the orders of the live stock sanitary board and of the board of supervisors are ineffective. The defendant, in the court below, asked the court to instruct the jury for the defendant that the state is not asking a conviction upon a statute in this case but upon a regulation of the board and that every man charged with crime must be proven guilty of a violation of law before a conviction can be had. The court refused to grant this instruction on the theory, no doubt, that the rules and regulations of the live stock sanitary board were merely administrative details of the chapter above referred to, the wide scope and purpose of the law being enacted by the legislature and the legislature conferring upon the live stock board full and plenary power to make such regulations and perform such acts as were necessary to carry out the legislative purpose. This phase will be reserved for later discussion.

The next proposition is that it is contended that the quarantine was ineffective because the live stock board had not declared the quarantine in Jefferson county. The rules and regulations are shown by the record to have been offered in evidence, and a copy of said rules and regulations is in the record and copy is made Exhibit "A" to this brief.

In regulation number 3 appearing on page 7 of the record, it is shown that Claiborne county was included in the quarantine district. It is shown in the proof that a copy of these regulations were given to Mr. Abbott, and by a reading of these regulations, it could readily be seen that this territory was quarantined and that the appellant had due notice thereof and that having such notice, he wilfully disobeyed and disregarded these regulations. Furthermore, the minutes of the board of supervisors show that...